Crugnale and Town Of Vincent
[2006] WASAT 93
•7 APRIL 2006
CRUGNALE and TOWN OF VINCENT [2006] WASAT 93
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 93 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:361/2005 | DELIVERED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 7/04/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1. DR 361 of 2005 The application reference DR 361 of 2005 for review of the direction issued by the respondent under s 10(3) of the Town Planning and Development Act 1928 (WA) is dismissed. The decision of the respondent to issue to the applicant the s 10(3) direction the subject of the review is affirmed. 2. CC 2056 of 2005 The application reference CC 2056 of 2005 for review of the notice issued by the respondent under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) is dismissed. The decision of the respondent to issue to the applicant the s 401(1)(c) notice the subject of the review is affirmed. 3. The stay of the s 10(3) direction and the stay of the s 401 notice, issued under s 25(2) of the State Administrative Tribunal Act 2004 (WA) are lifted. | ||
| B | |||
| PDF Version |
| Parties: | LUIGI CRUGNALE TOWN OF VINCENT |
Catchwords: | Town planning Section 10 Unauthorised development Building alternations and additions at rear of existing office/house Work commenced without building licence Development not consistent with approved development Impact of development on site and neighbours Failure to provide supporting information for changes Costs application refused Building Local Government (Miscellaneous Provisions) Act 1960 (WA), s 375(1)(b) requires building for licence be obtained for works Work commenced without building licence Section 401(1)(c) notice requires work be works be removed Variation in materials No plans of work done No certification from structural engineer of work done Notice affirmed |
Legislation: | Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(1)(b), s 375(1)(b) s 401, s 401(1)(c) Residential Design Codes of Western Australia (2002), cl 3.7.1 State Administrative Tribunal Act 2004 (WA), s 25(2), s 51(1)(b) Town of Vincent Town Planning Scheme No 1, cl 53(1) Town Planning and Development Act 1928 (WA), s 10, s 10(3), s 10AA |
Case References: | Nil Nil |
Orders | 1. DR 361 of 2005,(i) The application reference DR 361 of 2005 for review of the direction issued by the respondent under s 10(3) of the Town Planning and Development Act 1928 (WA) is dismissed.,(ii) The decision of the respondent to issue to the applicant the s 10(3) direction the subject of the review is affirmed.,2. CC 2056 of 2005,(i) The application reference CC 2056 of 2005 for review of the notice issued by the respondent under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) is dismissed.,(ii) The decision of the respondent to issue to the applicant the s 401(1)(c) notice the subject of the review is affirmed.,3. The stay of the s 10(3) direction and the stay of the s 401 notice, issued under s 25(2) of the State Administrative Tribunal Act 2004 (WA) are lifted.,4. There be no order as to costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CRUGNALE and TOWN OF VINCENT [2006] WASAT 93 MEMBER : MR J JORDAN (MEMBER) HEARD : DELIVERED ON THE DOCUMENTS DELIVERED : 7 APRIL 2006 FILE NO/S : DR 361 of 2005 BETWEEN : LUIGI CRUGNALE
- Applicant
AND
TOWN OF VINCENT
Respondent
- Applicant
AND
TOWN OF VINCENT
Respondent
(Page 2)
Catchwords:
Town planning Section 10 Unauthorised development Building alternations and additions at rear of existing office/house Work commenced without building licence Development not consistent with approved development Impact of development on site and neighbours Failure to provide supporting information for changes Costs application refused
Building Local Government (Miscellaneous Provisions) Act 1960 (WA), s 375(1)(b) requires building for licence be obtained for works - Work commenced without building licence - Section 401(1)(c) notice requires work be works be removed - Variation in materials - No plans of work done No certification from structural engineer of work done Notice affirmed
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(1)(b), s 375(1)(b) s 401, s 401(1)(c)
Residential Design Codes of Western Australia (2002), cl 3.7.1
State Administrative Tribunal Act 2004 (WA), s 25(2), s 51(1)(b)
Town of Vincent Town Planning Scheme No 1, cl 53(1)
Town Planning and Development Act 1928 (WA), s 10, s 10(3), s 10AA
Result:
1. DR 361 of 2005
The application reference DR 361 of 2005 for review of the direction issued by the respondent under s 10(3) of the Town Planning and Development Act 1928 (WA) is dismissed.
The decision of the respondent to issue to the applicant the s 10(3) direction the subject of the review is affirmed.
2. CC 2056 of 2005
The application reference CC 2056 of 2005 for review of the notice issued by the respondent under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) is dismissed.
The decision of the respondent to issue to the applicant the s 401(1)(c) notice the subject of the review is affirmed.
3. The stay of the s 10(3) direction and the stay of the s 401 notice, issued under s 25(2) of the State Administrative Tribunal Act 2004 (WA) are lifted.
(Page 3)
Category: B
Representation:
DR 361 of 2005
Counsel:
Applicant : Mr W Vogt
Respondent : Mr TM Durwood
Solicitors:
Applicant : Bruce Havilah & Associates
Respondent : Self-represented
CC 2056 of 2005
Counsel:
Applicant : Mr W Vogt
Respondent : Mr TM Durward
Solicitors:
Applicant : Bruce Havilah & Associates
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 4)
Summary of the Tribunal's decision
1 Mr Luigi Crugnale is the owner of a building originally built as a single storey house at No 355 Fitzgerald Street, North Perth. In February 2001, Mr Crugnale obtained planning approval to use the front rooms of the house as offices. He also received planning approval to make alterations and additions to the rear of the building for use as a residence. The additions included first floor and ground floor rooms and a carport at the rear.
2 Mr Crugnale commenced building but the additions were different from those shown in the planning approval plans and he did not apply for a building licence.
3 The Town of Vincent then commenced action against Mr Crugnale. The Town served a direction under s 10(3) of the Town Planning and Development Act 1928 (WA) (TPD Act), requiring removal of the works that had not received planning approval and restoration of the property to as nearly as practicable the condition immediately before the commencement of the works.
4 The Town also served a notice on Mr Crugnale under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) which pointed out that he had erected the building without the building licence required under s 374 of the LGMP Act. The notice required him to pull down and remove the unauthorised building.
5 Mr Crugnale applied to the Tribunal for review of the direction and the notice. The Tribunal considered both matters together as they concern the same works.
6 The Town of Vincent advised the Tribunal how the works were higher and more extensive than the development that had originally been approved and outlined how this had an impact on the site and the neighbouring property.
7 Mr Crugnale was given the opportunity to explain the work that had been carried out and to set out any reasons why the development should be allowed. Despite being given extended opportunity, Mr Crugnale failed to provide any information.
(Page 5)
8 The Tribunal dismissed Mr Crugnale's applications for review and affirmed the Council's decision to issue the s 10(3) direction and the s 401 notice.
Introduction
9 Mr Luigi Crugnale (applicant) owns Lot 270 (No 355) Fitzgerald Street, North Perth (subject land). An existing house on the subject land faces east to Fitzgerald Street. Photographs provided by the applicant show the house to be what could be described as a typical Californian bungalow built between the two World Wars. A driveway from the street to the rear runs between the southern side of the building and the boundary.
Background
10 In October 2000, the applicant applied for planning approval under Town Planning Scheme No 1 (TPS 1) for a change of use from residential to residential and office. Plans dated 19 October 2000 showed the office use was to be restricted to 39.5 square metres, which was essentially three rooms, a tea room and a toilet at the front of the house. The respondent granted planning approval for this change of use on 26 February 2001.
11 Also on 26 February 2001, the respondent granted planning approval for "proposed alterations and twostorey addition to existing dwelling" on the subject land. The plans attached to this application were dated 6 February 2001 and showed a living area, bedrooms and balcony on the first floor and on the ground floor a kitchen, eating area and a carport. The planning approvals were valid for a period of two years only and it was required that development be substantially commenced within that period or a fresh approval had to be obtained before commencing or continuing the development.
12 Development was commenced within the two year period, but was not as set out in the plans attached to the planning approval. In addition, Mr Crugnale did not apply for and was not therefore issued a building licence as required by s 374 (1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act).
13 On 7 February 2005, the respondent commenced proceedings against Mr Crugnale. It served a direction under s 10(3) of the Town Planning and Development Act 1928 (WA) (TPD Act) (s 10 direction) concerning the works undertaken in contravention of the planning approval granted
(Page 6)
- under TPS 1. Also served was a notice under s 401(1)(c) of the LGMP Act (s 401 notice) for failure to obtain a building licence.
14 Mr Crugnale then made applications to the Tribunal for review of the s 10 direction and the s 401 notice. These were, respectively matter DR 361 of 2005 and matter CC 2056 of 2005. At a directions hearing on 5 April 2005, the Tribunal ordered that, as provided for under s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), matter DR 361 of 2005 and matter CC 2056 of 2005 were to remain separate proceedings but were to be determined together.
Terms of the s 10 direction
15 The s 10 direction under the heading "Background" states:
" …
C. A twostorey structure, constructed of brick walls and concrete ground floor and first floor slab, measuring approximately 13 metres long, 11 metres wide and 6 metres high, at the rear of the existing singlestorey dwelling being approximately 2.7 metres from the southern side boundary and a parapet wall constructed adjacent to the northern side boundary, has been constructed ('Works').
D. Under clause 53(1) of the Town of Vincent Town Planning Scheme No 1 ('Scheme'), the prior approval of the Town is required for development. The Works is development under the Scheme.
E. No approval has been granted by the Town for the erection of the Works on the property.
F. Therefore the construction of the Works has been undertaken in contravention of the Scheme."
16 The s 10 direction includes under the heading "Directions":
"1. Under section 10(3) of the Town Planning and Development Act 1928 ('Act') you are required, within 60 days of the service of this written direction on you:
(a) to remove the Works from the property; and
- (b) to restore the property as nearly as practicable to its condition immediately before the commencement of the erection of the Works, to the satisfaction of the Town."
Terms of the s 401 notice
17 The section 401 notice states:
"WHEREAS:
…
C. There is on the property a twostorey structure, constructed of brick walls and concrete ground floor and first floor slab, measuring approximately 13 metres long, 11 metres wide and 6 metres high, at the rear of the existing single storey dwelling being approximately 2.7 metres from the southern side boundary and a parapet wall constructed adjacent to the northern side boundary. These additions are hereinafter referred to as the 'Building', and the Building has been erected on the Property without the permission of the Town as required under Section 374 of the Local Government (Miscellaneous Provisions) Act 1960 ('Act').
TAKE NOTE THAT:
1. You are required within 35 days of the date of service of this notice on you, to pull down and remove the Building to the satisfaction of the Town of Vincent.
2. … "
18 At the directions hearing on 5 April 2005, the Tribunal granted a stay in relation to both the s 10 direction and the s 401 notice, as provided for under s 25(2) of the SAT Act. The stays were to be in place until the matters the subject of the applications for review were determined.
Subsequent events
19 On 25 May 2005, the applicant lodged with the respondent a planning application under TPS 1 seeking retrospective planning approval for alterations and twostorey additions to the house on the subject land.
(Page 8)
- The respondent programmed the application for consideration at its meeting of 9 August 2005.
20 On 5 August 2005, the respondent wrote to the applicant raising with him its concern that the plans submitted for retrospective planning approval did not accurately reflect the construction on the subject land.
21 The letter to the applicant states:
"A site inspection by the Town's officers has confirmed that the existing (unapproved) parapet (boundary) wall is approximately 6.4 metres in height. It is noted that the submitted plans show a parapet (boundary) wall 5.4 metres in height on the western elevation and 5.0 metres in height on the northern and eastern elevations. It is imperative that accurate plans are submitted to the Town for further determination of the subject application.
Furthermore, the plans did not state the natural ground level, finished floor levels or relative levels, the overshadowing as per the winter solstice, being June 22, or the outline of buildings on adjoining properties. It is also advised that all sill heights to highlight windows shall be shown on the plans. It is therefore requested that these details be included in amended plans submitted to the Town for consideration and determination."
22 The respondent asked the applicant to submit the required information by 19 August 2005. The respondent then wrote to the Tribunal on 1 November 2005 advising of a telephone call it received from the applicant in which he had said that plans containing the required information would not be submitted. The applicant then wrote to the respondent on 20 October 2005, advising that he would like to withdraw his application for the extension and loft on the subject land "until further notice".
23 The two applications for review were the subject of a further directions hearing on 2 November 2005. The Tribunal issued the following orders:
"1. The applicant is to file, and give a copy to the respondent, any further submissions he wishes to make on these two matters by 16 November 2005.
(Page 9)
- 2. The respondent is to file and give a copy to the applicant, its final submissions in these two matters by 23 November 2005.
3. The applicant is to file and give to the respondent his final submissions in reply on the two matters by 30 November 2005.
4. The Tribunal will then proceed to determine these two matters on the papers."
24 On 21 November 2005, solicitors for the applicant advised that they would not be able to comply with the order as the solicitor with conduct of the matter was on leave until 1 December 2005. The respondent filed a submission on 22 November 2005. Nothing was received from the applicant. The applicant was further asked to file and serve any further submissions by 2 March 2006. Again, nothing was received by the Tribunal.
Discussion
Section 10 direction
25 It is common practice with development proposals to first apply for and obtain any planning approval required under a town planning scheme and then to obtain a building licence to enable the approved development to be constructed. If a person has carried out development in contravention of the requirements of the town planning scheme, s 10 of the TPD Act confers a discretion on the responsible authority as to whether or not to issue a direction on that person to take certain actions to remedy the situation, including, as in this instance, remove the works and restore the property as nearly as practicable to its condition immediately before the commencement of the works.
26 To determine whether or not to affirm the s 10 direction issued by the respondent, it is necessary to consider the works that have been carried out. It was the respondent's submission that there is an area of approximately 7.0 metres by 4.4 metres enclosed by walls at the western end of the development that was not included on the approved plans of 26 February 2001. One wall was described as splayed slightly towards the east because of a difference of approximately 0.75 metre in the lengths of the additional walls at the northern and southern ends of the extension. The unauthorised works were said to extend to the upper floor and a previously approved balcony removed from the western elevation to make
(Page 10)
- room for the unauthorised works. The unauthorised works are in a position shown on the approved plans as largely occupied by a carport.
27 The respondent also described a parapet wall as being approximately 6.4 metres from the natural ground level at the boundary, while the approval granted was for a parapet wall to a height of 5.0 metres above the natural ground level. The respondent referred to the Residential Design Codes of Western Australia (2002) (Codes) citing the acceptable development standard at cl 3.7.1 which sets out a maximum building height to the top of an external wall of 6.0 metres. It was the respondent's submission that the wall built has undue negative impact on the adjoining land and has been the subject of an objection from that landowner.
28 As indicated above, no evidence has been tendered by the applicant disputing the respondent's submissions. There has been no challenge to the evidence submitted by the respondent on the extent of development carried out in contravention of the planning approval or the impact that this additional work has had. The grounds for review said that "as a result of construction costs rising and a severe lack of tradesmen, the applicant was pressured into commencing works".
29 As described, the breach is not simply a technical breach, but is readily discernible and has a direct impact. The unauthorised development replaces a carport approved with the original proposal and has resulted in a parapet wall higher than approved which has an impact on the neighbour.
30 It can also be said that this is not unauthorised development that has remained undetected or ignored for a considerable period of time and used during that time. The breach was identified before completion of the works and the direction and notice served in what can be considered in the circumstances as a timely manner. It can also be said the works carried out are an addition to the rear of the existing building and, in the absence of any advice to the contrary, not so integrated with it that the development could not be restored to near its previous condition without compromising the existing building.
31 On the evidence before it, the Tribunal has concluded that the s 10 direction should be affirmed.
(Page 11)
Section 401 notice
32 As to the failure to obtain a building licence, the grounds for review said the applicant was concerned about the requirement to have substantially completed the works within the two year period of the date of the planning approval and so commenced without obtaining a building licence.
33 The applicant did provide a copy of a structural engineer's advice dated 19 July 2000 which says that the existing building is capable of supporting the proposed loads of the upper floor extension of stud walls and timber flooring. The respondent says the upper level built has a slab floor and brick walls. No certificate has been provided for this form of construction. The additional works also include extension into the area that was originally set aside for a carport. There is no evidence on the standard of this additional work.
34 It was the applicant's submission that the applications for review be allowed subject to conditions requiring submission of a complete building licence application, with plans showing the location of the completed work with dimensions, materials used, elevations, relevant structural information and a structural engineer's report on the works.
35 The applicant did submit some information to the respondent with the application for retrospective planning approval in May 2005. The respondent considered this to be inadequate and the applicant subsequently withdrew that information. The Tribunal was not provided with a plan that showed any of the additional work carried out or detail normally required for a building licence application. The only plan filed was that included with the original planning application which had scant information on materials and none on structural detail.
36 The Tribunal considers that the proper course in this matter would have been for necessary plans and supporting information to have first been submitted for appropriate assessment, rather than an uncertain approval being granted with a condition that the required information be subsequently provided. The applicant failed to comply with orders issued by the Tribunal to supply the necessary information. The Tribunal has not therefore been able to draw any conclusion other than that the s 401 notice be affirmed.
(Page 12)
Conclusion
37 Those who carry out development or use land should comply with the planning legislation and obtain any applicable approval, licence or other authorisation in relation to that activity. That is, it is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. There are occasions when this does not occur and it is within the discretion of the decisionmaker to issue directions or notices to have a use cease or works undertaken removed. In such cases, the SAT Act provides for an application for review of the notices or directions issued and for the Tribunal to consider the circumstances and determine whether the unlawful development can be allowed to remain or continue.
38 The applicant knew of the procedures for seeking and obtaining the necessary planning approval under TPS 1 before commencing development and took those steps to obtain the planning approvals issued in February 2001. He then commenced development which was in contravention of the approvals issued.
39 The respondent has made submissions on the extent of unauthorised works and the impact of those works, and these remain unchallenged. The Tribunal can find no reason to discount the respondent's submissions.
40 From its consideration of the matter, the Tribunal has determined that the respondent's s 10 direction issued under the TPD Act is to be affirmed. The Tribunal has also formed the view that there is no evidence to support the application to set aside the s 401 notice issued under the LGMP Act and, consistent with the conclusion reached on the s 10 direction, this notice has also been affirmed.
Costs
41 The respondent made application for costs. It said this was because the applicant did not provide information requested by the respondent to complete the application for retrospective planning approval and then subsequently withdrew that application. The respondent said this caused unnecessary delay and workload for its officers in attempts to determine the retrospective planning application and thereby to settle the applications for review.
42 The determination of the applications for review was delayed pending the determination of the retrospective planning application. The Tribunal considers, however, that the work done to assess the application
(Page 13)
- was work that, at least in part, would otherwise have been done in preparing submissions on the application for review. In this regard it is noted that submissions made by neighbours on the application for retrospective approval were included with respondent's submissions on the applications for review. The Tribunal considers that this is not a case to depart from the principle that each party should bear its own costs.
Orders
43 The Tribunal makes the following orders:
1. DR 361 of 2005
(i) The application reference DR 361 of 2005 for review of the direction issued by the respondent under s 10(3) of the Town Planning and Development Act 1928 (WA) is dismissed.
(ii) The decision of the respondent to issue to the applicant the s 10(3) direction the subject of the review is affirmed.
2. CC 2056 of 2005
(i) The application reference CC 2056 of 2005 for review of the notice issued by the respondent under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) is dismissed.
(ii) The decision of the respondent to issue to the applicant the s 401(1)(c) notice the subject of the review is affirmed.
3. The stay of the s 10(3) direction and the stay of the s 401 notice, issued under s 25(2) of the State Administrative Tribunal Act 2004 (WA) are lifted.
5. There be no order as to costs.
(Page 14)
- I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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